The ruling was unsurprising, given the state of the law. But one judge on the panel concurred in order to lodge a harsh criticism.

The case involves the family members of Salem and Waleed bin Ali Jaber, the unintended, innocent victims of a drone strike in Yemen. They sought a declaratory judgment that the strike violated the Torture Victims Protection Act and the Alien Tort Statute.

The D.C. Circuit upheld a lower court ruling that the case raised a nonjusticiable political question. Drawing on circuit precedent, the El-Shifa case, the court wrote:

It would be difficult to imagine precedent more directly adverse to Plaintiff's position. While Plaintiffs clearly assert claims under the TVPA and ATS, the precise grounds they raise in their Complaint call for a court to pass judgment on the wisdom of [the] Executive's decision to commence military action--mistaken or not--against a foreign target. . . .

Plaintiffs will no doubt find this result unjust, but it stems from constitutional and pragmatic constraints on the Judiciary. In matters of political and military strategy, courts lack the competence necessary to determine whether the use of force was justified.

Judge Brown, who also wrote the majority opinion, concurred with a scathing critique of the application of the political question doctrine to cases like this, especially given the lack of oversight in the other two branches:

Of course, this begs the question: if judges will not check this outsized power, then who will? . . . The President is the most equipped to police his own house. But, despite an impressive number of executive oversight bodies, there is pitifully little oversight within the Executive. Presidents are slow to appoint members to these boards; their operations are shrouded in secrecy; and it often seems the board's are more interested in protecting and excusing the actions of agencies than holding them accountable. Congress perhaps? But congressional oversight is a joke--and a bad one at that. . . .

Our democracy is broken. We must, however, hope that it is not incurably so. . . . The Court's opinion . . . is all a Judiciary bound by precedent and constitutional constraints may permissibly claim. It is up to others to take it from here.

The Third Circuit last week dismissed a case challenging an elected candidate's qualifications for the Virgin Islands legislature. The ruling means that the elected candidate will not be seated.

The case arose when Kevin Rodriguez was elected to serve in the Virgin Islands Legislature. After the election, but before the swearing-in, a rival candidate, Janelle Sarauw, challenged Rodriguez's qualifications to serve, based on Rodriguez's prior representation in a bankruptcy case that he lived in Tennessee. (The VI Revised Organic Act requires that a person serving in the VI legislature reside in the VI for at least three years preceding the date of his or her election.) Sarauw sued in the VI courts and sought an injunction compelling the Board of Elections to de-certify Rodriguez as a qualified candidate, thus preventing him from taking a seat in the 32nd Legislature. (The Board, an independently elected body outside the legislature and judiciary, has authority under the ROA to determine qualifications of candidates before swearing in.)

While that case was moving up and down the VI courts, the 32nd Legislature was sworn in (without Rodriguez, because the courts were still working out how to deal with his qualification). Rodriguez then removed the case to federal court (remember, this is all federal law, including the ROA, because of the VI's status in relation to the US), asking for an injunction directing the 32nd Legislature to seat him.

The Third Circuit tossed the case. The court ruled that the courts lacked authority to rule a candidate qualified after the swearing in, because the ROA says that the legislature shall have the sole power to determine the qualifications of its members. In other words, the issue was textually committed to a coordinate branch of government--a political question. (The court ruled that the ROA contains separation-of-powers principles, which form the basis of the political question doctrine.) The court noted that separation-of-powers and the ROA would not prohibit the courts from ruling on a candidate's qualifications before swearing in, when the Board has authority to make such a determination, because the separation of powers don't apply to the Board, "a popularly elected and independent entity" that's not a part of the legislative or judicial branches. But Rodriguez only removed his case after the swearing-in, so his case was always a political question.

The court also ruled that the portion of the case brought by Sarauw, the "removed case," was moot, because the legislature had already been sworn in.

Along the way, the governor ordered a special election, and Sarauw won.

Judge Colleen Kollar-Kotelly today dismissed Smith v. Obama, a case by a service-member challenging President Obama's authority to fight ISIS. The ruling ends the case, with little chance of a successful appeal, and frustrates anyone waiting for a court ruling on whether President Obama can use the AUMF to fight ISIS.

The plaintiff, a U.S. Army Captain, sued President Obama, arguing that neither the 2001 AUMF nor the 2002 AUMF authorized the President to order a military campaign against ISIS (Operation Inherent Resolve), and that the President violated the War Powers Resolution and the Take Care Clause in ordering the campaign.

The plaintiff, a supporter of Operation Inherent Resolve (not an opponent of the campaign, as is more usually the case in these kinds of challenges) who was deployed as part of that campaign, argued that he had standing, because President Obama's orders forced him to choose between two untenable options--following illegal orders (on the one hand) and disobey orders (on the other). The court rejected this claim. The court said that the plaintiff could follow orders without fear of punishment, even if the President acted illegally in ordering the campaign. The court also rejected the plaintiff's oath claim (that he'd violate his oath to protect the constitution by complying with illegal orders), again because he'd face no punishment.

The court went on to rule that the case raised a nonjusticiable political question:

Resolving this dispute would require the Court to determine whether the legal authorizations for the use of military force relied on by President Obama--the 2001 and 2002 AUMFs--in fact authorize the use of force against ISIL. With regard to the 2001 AUMF, the Court would have to determine whether the President is correct that ISIL is among "those nations, organizations, or persons" that "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons," and that Operation Inherent Resolve represents "necessary and appropriate force" against that group. With regard to the 2002 AUMF, the Court would have to determine whether the President is correct that operations against ISIL are "necessary and appropriate in order to . . . defend the national security of the United States against the continuing threat posed by Iraq." For the reasons set out below, the Court finds that these are political questions under the first two Baker factors: the issues raised are primarily ones committed to the political branches of government, and the Court lacks judicially manageable standards, and is otherwise ill-equipped to resolve them.

The belt-and-suspenders ruling (dismissing for lack of standing and political question) seems unnecessary, given that the standing problems alone would seem to comfortably support dismissal. Moreover, the application of the political question doctrine seems at odds with the D.C. Circuit's post-Boumediene habeas cases. The court had something to say about this, in footnote 17:

Those courts were not asked to declare that an ongoing military operation, about which there appears to be no dispute between Congress and the President, was "illegal." They were asked to determine whether an individual should be accorded habeas corpus relief because his detainment had become illegal. This is a far more traditional and appropriate judicial role, which does not raise the same separation of powers issues present in this case.

The Fourth Circuit ruled today that victims of torture at the hands of a private military contractor are not barred by the political question doctrine from pressing their case in federal court.

The ruling is a significant victory for the plaintiff-victims and for access to justice in general. It means that some portion of this case (and maybe all of it) can move forward on the merits.

The case arose when former prisoners at Abu Ghraib sued a private military contractor, CACI, for torture and mistreatment under the Alien Tort Statute. After some up-and-down on different issues, the district court ruled that the case raised a non-justiciable political question and dismissed it. In particular, the district court said (1) that CACI was under the control of the military, (2) that the case raised questions of "sensitive judgments made by the military," and (3) that the court lacked judicially manageable standards for resolving the dispute.

The Fourth Circuit reversed and remanded. As to the district court's first two grounds, the Fourth Circuit said that they don't apply when a plaintiff alleges illegal behavior under international law or criminal law. "Accordingly, when a military contractor acts contrary to settled international law or applicable criminal law, the separation of powers rationale underlying the political question doctrine does not shield the contractor's actions from judicial review."

More particularly, as to the first ground (under the control of the military), the Fourth Circuit said that "when a contractor has engaged in unlawful conduct, irrespective of the nature of control exercised by the military, the contractor cannot claim protection under the political question doctrine." The court said that the district court improperly analyzed the under-the-control-of-the-military question and remanded for further consideration of the question of illegal conduct. (The court was quite clear, however, that there was some illegal behavior. The question on remand is just how much.)

As to the second ground (sensitive judgments of the military), the Fourth Circuit again looked to the legality of the conduct: "to the extent that the plaintiffs' claims rest on allegations of unlawful conduct in violation of settled international law or criminal law then applicable to the CACI employees, those claims fall outside the protection of the political question doctrine." The court said that the district court improperly analyzed the sensitive-judgments-of-the-military question and remanded this, too. (Again, the court was quite clear that there was some illegal behavior.)

In short:

Any conduct of the CACI employees that occurred under the actual control of the military or involved sensitive military judgments, and was not unlawful when committed, constituted a protected exercise of discretion under the political question doctrine. Conversely, any acts of the CACI employees that were unlawful when committed, irrespective whether they occurred under actual control of the military, are subject to judicial review. Thus, the plaintiffs' claims are justiciable to the extent that the challenged conduct violated settled international law or the criminal law to which the CACI employees were subject at the time the conduct occurred.

As to the third ground (that the court lacked judicially discoverable and manageable standards for adjudicating the case), the Fourth Circuit said that "torture" and "war crimes" are well defined in the U.S.C. The court said that it may be a hard question, but it's not one that lacks standards. No remand on this question.

In all, under the Fourth Circuit's ruling, some portion of this case (and maybe all of it) can move forward. It all depends on how much CACI behavior was clearly illegal.

Judge Ellen Segal Huvelle (D.D.C.) dismissed a complaint by the estates of two persons killed in a drone strike in Yemen. Judge Huvelle ruled that the complaint, which sought a declaration that the strike violated the Torture Victim Protection Act and customary international law, raised a non-justiciable political question.

The case, Bin Ali Jaber v. U.S., grew out of a drone strike that killed five individuals in Yemen. The estates of two of the victims sued, seeking a declaration that the U.S. violated the TVPA and international law. The government moved to dismiss the case as a non-justiciable political question.

Judge Huvelle granted the motion. She wrote that the court lacked judicially manageable standards for judging the legality of a drone strike, and that the decision to order the strike was a "policy determination of a kind clearly for nonjudicial discretion."

Judge Huvelle distinguished Comm. of U.S. Citizens Living in Nicaragua v. Reagan and Al-Aulaqi v. Panetta--cases in which the courts held that tort claims arising from foreign policy decisions were justiciable--because the plaintiffs in those cases raised constitutional claims. "Because the judiciary is the ultimate interpreter of the Constitution, constitutional claims can require a court to decide what would otherwise be a political question, but no such claims have been made here."

Judge Huvelle recognized that her ruling was in tension with Judge Weinstein's decision in In re Agent Orange Product Liability Litigation--with claims "not materially distinguishable from plaintiffs'." But she said, "[O]f course, this Court is bound by the decisions of the D.C. circuit, not the Eastern District of New York."

The House of Representatives voted along party lines this afternoon to authorize a federal lawsuit against President Obama for alleged constitutional overreach in implementation of the Affordable Care Act.

Derek Muller (Pepperdine) argues over at Jurist.org that the Tenth Circuit dramatically overreached in its recent ruling in Kerr v. Hickenlooper. Recall that the court ruled in that case that a group of state legislator had standing to challenge under the Guaranty Clause the state's Taxpayer Bill of Rights, or TABOR, which requires a popular vote before the legislature can raise taxes, and that the case did not raise a political question. We posted here.

Muller says that court's conclusions on both standing and political question are out of step with longstanding Supreme Court jurisprudence and, if upheld, would result in "extraordinary consequences":

It would create many more opportunities for individual legislators in each state--and perhaps those in both houses of Congress--to sue on generalized grounds of political disempowerment, or even compel the executive to act pursuant to legislative demands. Such would bring about serious judicial inquiries into the validity of the initiative and referendum processes themselves--which has been a large part of most states' governance for the past hundred years. Moreover, it would focus judicial scrutiny on the manner in which each state governs themselves--effectively ushering in a power shift away from the people--and their ability to enact policy objectives via popular vote--and towards the federal court system.

The Tenth Circuit remanded the case, and the district court is preparing for trial. We'll surely see this one again.

Rangel sued Boehner and others after politico.com posted a memo purportedly written by the chief counsel of the House Ethics Committee. Rangel argued that that memo undermined the integrity of his censure proceeding--so much so that he had a cause of action.

The defendants moved to dismiss the case, arguing that Rangel lacked standing, the case raised a political question, the defendants enjoyed immunity from suit under the Speech and Debate Clause, Rangel's complaint failed to state a claim upon which relief could be granted, and even if the court had jurisdiction it should exercise its discretion not to reach the merits.

Judge Bates agreed. He concluded that Rangel lacked standing based on injury to his reputation (causation was too attenuated), his loss of status on the House Ways and Means Committee (again, no causation, because the Democrats lost seats on the Committee after the 2010 election, and it wasn't clear that Rangel's censure caused him to lose a subcommittee seat), the political exploitation of his censure by a primary opponent (because that's not an injury), or a due process injury (again, no injury).

Judge Bates also concluded that Rangel's claims were political questions, and that each defendant is immune under the Speech or Debate Clause.

The ruling ends the case, unless and until the plaintiffs appeal. It seems unlikely that the D.C. Circuit would rule differently. In any event, if the Senate Democrats succeed in reforming the filibuster at the beginning of the next Congress, the case may become moot.

Judge Sullivan ruled that the plaintiffs lacked standing. As to the House members: he wrote that he was "not persuaded that their alleged injury--vote nullifcation--falls into a narrow exception enunciated by the Supreme Court in Raines v. Byrd." Op. at 2. As to the other plaintiffs: they failed to "demonstrate[] that this Court can do anything to remedy the alleged harm they have suffered: the inability to take advantage of the opportunity to benefit from proposed legislation [the DREAM Act] that was never debated, let alone enacted." Op. at 2.

On separation of powers, Judge Sullivan said that Article I reserves to each House the power to determine its own rules, and there's nothing in the Constitution constraining the Senate from allowing debate to continue absent a super-majority vote. "[A]bsent a rule's violation of an express constraint in the Constitution or an individual's fundamental rights, the internal proceedings of the Legislative Branch are beyond the jurisdiction of this Court." Op. at 3.

The government late last week moved to dismissAl-Aulaqi v. Panetta, the case for civil damages brought by family members of those killed in the government's targeted killing of Anwar al-Aulaqi. We covered the complainthere; the ACLU, which represents the plaintiffs, has a case page here.

The government's motion isn't a surprise. It raises all the expected separation-of-powers arguments, plus a couple others. As the motion notes, the tide of recent circuit rulings is behind it--at least insofar as several circuits have dismissed similar torture cases against high-level government officials because they raised "special factors" under a Bivens analysis. That seems the likely result here, too.

This excerpt from the introduction pretty well summarizes the government's position:

But courts have recognized that the political branches, with few exceptions, have both the responsibility for--and the oversight of--the defense of the Nation and the conduct of armed conflict abroad. The Judiciary rarely interferes in such arenas. In this case, Plaintiffs ask this Court to take the extraordinary step of substituting its own judgment for that of the Executive. They further ask this Court to create a novel damages remedy, despite the fact that--based on Plaintiffs' own complaint--their claims are rife with separation-of-powers, national defense, military, intelligence, and diplomatic concerns. Judicial restraint is particularly appropriate here, where Plaintiffs seek non-statutory damages from the personal resources of some of the highest officials in the U.S. defense and intelligence communities. Under these weighty circumstances, this Court should follow the well-trodden path the Judiciary--and particularly the D.C. Circuit--have taken in the past and should leave the issues raised by this case to the political branches.

Memo at 1.

More particularly, the government argues that the political question doctrine bars the court from hearing this case; that "special factors" counsel against a judicial remedy under Bivens; and that the defendants enjoy qualified immunity.

The government also argues that the plaintiffs failed to plead that they had capacity to sue as representatives of the killed. Under Federal Rule of Civil Procedure 17(b), the plaintiffs can act as representatives of an estate only if the law of the jurisdiction where the court sits allows. Here, the government says that they didn't comply with the requirements of D.C. law.

Finally the government claims that the plaintiffs' bill of attainder claim fails, because the Bill of Attainder Clause doesn't apply to executive actions (it only applies to bills).

Circuits that have ruled on government actor liability for torture have announced the courts closed for this kind of case. If this recent history is any guide, this case, too, will have a hard time getting off the ground.

Earlier this week the Justice Department filed its
motion to dismiss and supporting memorandum in Committee on Oversight and Government Reform v. Holder. The motion was expected, and the arguments are not a surprise.

DOJ argues that the court lacks Article III jurisdiction because the case presents a political question and that separation-of-powers principles counsel against the case moving forward. In short, DOJ says that the political branches should work this out. According to the Department, this is especially so with regard to material on internal deliberations regarding the Department's responses to congressional inquiries for substantive material on the program.

DOJ also argued that the court lacks subject matter jurisdiction and that the Committee has no cause of action. It says that the Committee brought the case under 28 U.S.C. Sec. 1331, but that given the history of that provision and 28 U.S.C. Sec. 1365, the court lacks jurisdiction. In particular, DOJ argues that Congress enacted 1365, giving the court jurisdiction over Senate subpoena enforcement actions, after Congress was foiled by the old amount-in-controversy in 1331. (Congress asserted no claim for monetary damages in that case.) Congress later removed the amount-in-controversy requirement, but DOJ argues that 1365, with its careful language limiting jurisdiction to cases brought by the Senate (not the House), trumps. (Otherwise 1365 would be a nullity.) If so, the court lacks jurisdiction over the House Committee's suit. Morever, DOJ says that the Committee has no cause of action, because the Declaratory Judgment Act contains no independent cause of action (contrary to the D.C. District court's own relatively recent prior ruling in Miers) and because the Constitution grants no independent cause of action.

The case comes 19 months after Judge Bates (D.D.C.) dismissed an earlier suit by Anwar al-Aulaqi's father, seeking to stop the government from killing his son in the first place. Judge Bates ruled that al-Aulaqi's father lacked standing and failed to allege a violation of the Alien Tort Statute, and that the case raised non-justiciable political questions. (Judge Bates didn't rule on the government's state secrets claim.)

The case also comes on the heels of a couple of dismissed torture suits against high-level officials--Doe v. Rumsfeld (rejected because special factors counseled against a Bivens remedy) and Lebron v. Rumsfeld (same, and cert. denied).

All this is to say that the case faces some hurdles--political question, state secrets, Bivens special factors, and qualified immunity, to name a few.

The plaintiffs in the most recent case argue that the targeted killing were illegal under the laws of war, because the plaintiffs were not engaged in activities that presented a concrete, specific, and imminent threat of death of serious physical injury; because something short of lethal force could have been used to neutralize any threat that they posed; because they were not directly participating in hostilities; because the government failed to take steps to avoid harm to bystanders; and because the killings didn't meet the requirements of distinction and proportionality.

The Supreme Court ruled on Monday in Zivotofsky v. Clinton that the political question doctrine does not bar judicial review of the constitutionality of a federal statute that requires the Secretary of State to designate "Israel" as the country of birth for a U.S. citizen born in Jerusalem who requests such designation. We previewed the case here, and we reviewed the oral argument here.

The ruling dodges the significant underlying separation-of-powers question over which branch has authority to designate the country of birth on a U.S. passport--at least for now. The Court remanded the case for consideration of this issue; it is sure to return.

The case pits State Department regs forbidding the designation of Israel as the country of birth for a U.S. citizen born in Jerusalem against a federal statute that requires such designation--in short, whether the President or Congress has authority to specify the country of birth on a U.S. passport for a U.S. citizen born in Jerusalem. Here, this power also implicates U.S. foreign policy, because the designation would be seen as taking sides in the Israeli-Palistinian conflict. Complicating things, President George W. Bush issued a signing statement on the legislation, Section 214(d) of the Foreign Relations Authorization Act, saying that it unconstitutionally interferes with the President's foreign affairs powers. (The constitutionality of the signing statement, however, wasn't before the Court.)

The D.C. Circuit ruled that the case raised a nonjusticiable political question--the President's authority to recognize foreign sovereigns--and affirmed its dismissal.

The Supreme Court reversed. Chief Justice Roberts wrote for the Court that the case merely involved the constitutionality of a federal statute--"a familiar judicial exercise"--and did not require the courts to intervene in or to set foreign policy. This didn't make the case easy, but it did make it appropriate for judicial review. The Court remanded the case to get the lower courts' best thinking on the merits before the case inevitably comes back to it.

Justice Sotomayor wrote a concurrence joined in part by Justice Breyer, and Justice Alito wrote a concurrence. Justice Breyer was the lone dissenter, arguing that the case was a political question because it may well require the Court to evaluate foreign policy considerations, because there are no strong reasons for judicial review, and because the political branches can work it out on their own.

The ruling sends the case back to the lower courts for consideration on the merits. But this important separation-of-powers case is almost certain to come back to the high Court.

The Supreme Court will hear arguments on Monday in MBZ (Zivotofsky) v. Clinton, a case that on its face tests whether Congress or the President has authority to name the place of birth on a U.S. passport--but it's likely about much more.

The case arose when two U.S. citizens living in Israel sought a passport for their child, born in Jerusalem, with a place of birth as "Jerusalem, Israel." Embassy officials agreed to designate the place of birth "Jerusalem," but refused to designate "Israel." The officials' refusal was based on long-standing U.S. policy not to recognize Jerusalem as part of Israel and U.S. State Department regulations that prohibit the designation of "Israel" as the country of birth for any U.S. citizen born in Jerusalem.

The parents sued. They pointed to the Foreign Relations Authorization Act, Fiscal Year 2003, that requires the Secretary of State to designate "Israel" as the country of birth for any U.S. citizens born in Jerusalem who so requests. But President Bush issued a signing statement on the Act that claimed that this provision was unconstitutional and said that the executive branch would decline to enforce it.

The case thus pits the President against Congress on the question of which branch has authority over the birthplace on the passport.

The lower courts dismissed the case, holding that it raised a nonjusticiable political question. The Zivotofskys appeal that ruling. But the Supreme Court also directed the parties to argue the merits: whether the Act unconstitutionally infringes upon the President's authority in foreign affairs.

The Zivotofskys argue that the case involves a run-of-the-mine issue relating to passports--the mere designation of a place of birth, which serves identification objectives, not foreign policy objectives. Thus in their view the case does not involve a political question, and requiring the designation of "Israel" as a country of birth for a U.S. citizen born in Jerusalem is within congressional authority.

Secretary of State Clinton argues that the President's Article II power to receive Ambassadors includes the power to recognize (or not) foreign sovereigns and the power to designate them (or not) on U.S. passports. She also argues that this is a political question because of the sensitive foreign policy issues behind the State Department regulation--the kind of issues that are delegated to the President alone under the Constitution.

The fact that the Court directed the parties to brief the merits suggests that it'll say at least something about the merits. If it does, it seems likely that it'll say something very narrow--dealing only with the extent of the President's authority to receive Ambassadors as against any congressional authority over passports. But even that narrow ruling could say something broader about the respective roles of the political branches over foreign policy--a much broader question. This seems to be a narrow, even small, case on the surface, but there are potentially very big issues beneath.

As to presidential signing statements: it seems unlikely that the Court will say anything at all about them: this issue is not squarely before the Court; the parties did not brief it thoroughly; and the Court doesn't have to deal with it to decide the case.

United States District Judge Susan Bolton, who entered a preliminary injunction against portions of Arizona's controversial SB1070 in July 2010, dismissed the counterclaims filed by Arizona and Governor Jan Brewer in a 22 page Order late Friday.

The Arizona/Brewer counterclaim asserted five claims and Judge Bolton rejected each one, although she found that Arizona had standing to raise the claims.

The constitutional counterclaims - - - Count One, the failure and refusal to protect Arizona from invasion and domestic violence under Article IV, Section 4 and Count Five, declaratory relief under the Tenth Amendment - - - were analyzed as subject to issue preclusion given Bolton's previous order, but the Judge also further considered the claims. As to the "invasion and domestic violence" counterclaim, Judge Bolton found that the claim was nonjusticiable because it was a political question and cited the "six factors" from Baker v. Carr (1962):

[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; [2] a lack of judicially discoverable and manageable standards for resolving it; [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [5] an unusual need for unquestioning adherence to a political decision already made; [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Bolton emphasized the lack of "judicially discoverable and manageable standards" for determining what constituted an invasion and domestic violence.

Regarding the Tenth Amendment counterclaim, Judge Bolton found that Arizona was not being "comandeered" :

Arizona does not point to any federal immigration policy that mandates or compelsArizona to take any action. The complained of expenditures arise entirely from Arizona’sown policy choices and independent constitutional obligations and are not incurred as a resultof any federal mandate. These state costs do not give rise to a claim under the TenthAmendment.

The Supreme Court today agreed to hear a case involving the justiciability of a dispute over the administration's non-recognition of Jerusalem as the capital city of Israel. But the Court also instructed the parties to brief the scope of Presidential power to recognize foreign sovereigns. (See page 3 of the May 2 Order List.) The case thus gives the Court a rare opportunity to explore the contours of separation-of-powers in foreign affairs and the President's foreign affairs power.

The case arose out of a dispute over a the recorded birthplace of a U.S. citizen born in Jerusalem. Petitioner's mother asked the State Department to record the birthplace as "Jerusalem, Israel" on the petitioner's Consular Report of Birth Abroad and U.S. passport. But the State Department regs and policy required it to record merely "Jerusalem" as the birthplace.

The State Department's long-running policy not recognizing Jerusalem as Israel's capital (or even as a city within Israel's sovereign territory) is designed to preserve U.S. neutrality on state sovereignty over Jerusalem, leaving that issue to be decided by negotiation between the parties to the Arab-Israeli dispute. According to the State Department's assessment, "[a]ny unilateral action by the United States that would signal, symbolically or concretely, that it recognizes that Jerusalem is a city that is located within the sovereign territory of Israel would critically compromise" the peace process.

In 2002, however, Congress enacted, and the President signed, legislation that specifically required the State Department to list "Israel" as the birthplace of any citizen born in Jerusalem, upon the parents' request. President Bush issued a signing statement construing the provision, Section 214 of the Foreign Relations Authorization Act, Fiscal Year 2003, as advisory, not mandatory, because it "impermissibly interfere[s] with the President's constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine teh terms on which the recognition is given to foreign states."

The petitioner sued, but both the district court and D.C. Circuit dismissed the case as a nonjusticiable political question.

The Supreme Court today agreed to hear the case, with this further instruction:

In addition to the question presented by the petition [whether the case presents a nonjusticiable political question], the parties are directed to brief and argue the following question: "Whether Section 214 of the Foreign Relations Authorization Act, Fiscal Year 2003, impermissibly infringes the President's power to recognize foreign sovereigns."

The case thus puts front-and-center the question of Presidential authority over foreign affairs when executive policy and action violate plain law. The case is unusual in that executive action and the law directly and obviously conflict, pitting one source of authority (the President's Article II powers) immediately against another (Section 214) and thus bringing Presidential foreign affairs power into particularly sharp focus.

We might also look for anything the Court has to say about Presidential signing statements that decline to enforce a law based on its intrusion into core areas of executive responsibility.

The administration argued against review. In its view, the lower courts properly dismissed the case as a nonjusticiable political question, because under the recognition or nonrecognition of foreign sovereigns is textually committed to the executive branch (under Article II, Section 3, the power to "receive Ambassadors and other Public Ministers."). Baker v. Carr.

Judge John D. Bates (D.D.C.) today dismissed Nasser Al-Aulaqi's case on behalf of his son, Anwar Al-Aulaqi, to stop the administration from killing his son. Anwar is a U.S. citizen tagged by the Obama administration as a terrorist and targeted for extrajudicial killing. We most recently posted on the case here.

The 83-page opinion in Al-Aulaqi v. Obama concludes that Nasser lacks standing, failed to allege a violation of the Alien Tort Statute, and that the case raises non-justiciable political questions. (Judge Bates declined to rule on the administration's state secrets claim.) The ruling does not address the merits--except to say that that the case is "unique and extraordinary."

Judge Bates ruled that Nasser lacks standing as next-friend or under third-party-standing rules. According to Judge Bates, Nasser failed to explain why Anwar could not appear in court himself and failed to show that he would be truly dedicated to Anwar's best interests. (Judge Bates wrote that "no U.S. citizen may simultaneously avail himself of the U.S. judicial system and evade U.S. law enforcement authorities"--even, apparently, if he is subject to killing or indefinite detention as a terrorist if he shows up. Judge Bates also ruled that Nasser did not show that Anwar even wanted to bring this case--and therefore Nasser did not show that he was representing Anwar's best interests.) Moreover, Nasser did not allege a sufficient harm--loss of his relationship with his son--to support third-party standing.

Next Judge Bates ruled that Nasser failed to satisfy the requirements of the Alien Tort Statute--both that he suffered a legally cognizable tort that rises to the level of a customary international law norm, and that the U.S. waived sovereign immunity. As to the former, Judge Bates ruled that a threatened extrajudicial killing is not a violation of customary international law (even if an actual extrajudicial killing is). Moreover, this case has a complicating factor: an alien (Nasser) brings the case on behalf of a citizen (Anwar). The ATS doesn't allow for this. As to the latter, the U.S. has not waived immunity.

Finally, Judge Bates ruled that the case is barred by the political question doctrine. Resolution of the case would require the court to delve into complicated issues of foreign affairs and national security, and therefore the court must abstain.

The opinion recognizes the importance and the complicated and troubling nature of the case--on both sides. (It starts with a series of questions like this: "How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when the United States decides to target a U.S. citizen for death?" And this: "Can a U.S. citizen--himself of through another--use the U.S. judicial system to vindicate his constitutional rights while simultaneously evading U.S. law enforcement authorities, calling for 'jihad against the West,' and engaging in operational planning for an organization that has already carried out numerous terrorist attacks against the United States?" Good questions, indeed.) But it doesn't address these, at least not directly. Instead, it dismisses the case largely on non-merits issues. In so doing, the court leaves the substantive questions for the political branches--here, the executive alone. In short, under this opinion there doesn't appear to be a way that a U.S. citizen could safely challenge an ordered extrajudicial killing through the U.S. courts: Upon revealing her- or himself, she or he would almost certainly be killed or detained (indefinitely). (If the latter, she or he could challenge the detention by way of habeas, but could apparently not challenge the ordered killing.) This apparently leaves unchecked power in the hands of the executive to order killings of anyone, including U.S. citizens, it deems a terrorist.

Recognizing the "drastic nature" of the government's power, Judge Bates tried to limit the ruling in two ways--limiting the political question analysis to the facts, and declining to rule on the state secrets privilege. But in the end, the holdings on standing, the ATS, and even the political question doctrine mean that targets of extrajudicial killings have no real way to challenge the government in the courts.

The government proffers three principal arguments, each of which reveals a little more about the legal authority it claims for targeted killings in the first place. Thus, the government argues that Nasser Al-Aulaqi, as Anwar's next-of-friend, lacks standing. The government argues that Nasser failed to show the imminence of harm necessary to support standing (because, after all, the whole program is secret--see below) and that Anwar could access the courts by turning himself over to U.S. authorities.

Next, the government argues that the case is barred by the political question doctrine. The government argues that judicial action in the case would intrude upon the foreign affairs and national security powers of the President in violation of separation-of-powers principles. In short, the courts are not well suited to evaluate this kind of claim. Moreover, the government argues that it has clear authority to engage in targeted killing (without admitting that it has targeted Al-Aulaqi) under the AUMF and international law.

Finally, the government argues that its assertion of the state secrets privilege requires complete dismissal. Emboldened by the recent Ninth Circuit decision in Mohamed v. Jeppesen, the government argues that the case should be dismissed on the pleadings based on its assertion of the privilege and the court's ex parte and in camera review of it own affidavits supporting the assertion. The government goes one step farther than the Ninth Circuit's ruling in Mohamed, however, and argues that the privilege is rooted in constitutional principles (citing the Fourth Circuit's decision in El-Masri)--a dangerous argument not supported by Mohamed (or any other authority except El-Masri, for that matter) and taking the courts out of the equation entirely (as I argue in detail here). While the government is careful to argue the privilege as a last resort--and with all the procedural protections built in by the Holder Justice Department--its claim here is still breathtaking and means that the government could order the targeted killing of a U.S. citizen on its own say-so, with no judicial oversight. The government gives a glimpse of the kind of information it seeks to protect here:

Resolution of the plaintiff's claim therefore would require the Court to answer a range of questions, even apart from the question of whether the plaintiff's son has been targeted: What kind of threat, if any, does plaintiff's son pose? If there is a threat, how imminent is it, and how continuing is it? How many innocent people are threatened by the danger plaintiff's son might pose? In the totality of the circumstances does the United States have the capability and access to capture plaintiff's son safely? In trying to capture him, how many innocent people or military personnel would likely be killed or injured in the process? It is self-evident that all the above questions (and more) directly implicate information protected by the military and state secrets privilege, at a minimum because those facts would require the examination of any available and pertinent classified intelligence that might exist on the subject, as well as the sources or methods for gathering that intelligence, and any related information concerning foreign relations and diplomatic communications.

. . .

Finally, plaintiff also raises a claim under the Fifth Amendment that expressly seeks disclosure of alleged secret criteria governing the targeting of U.S. citizens engaged in terrorist activities with lethal force. Such a disclosure would reveal not only whether such targeting has occurred or been considered in any given case but would disclose to the plaintiff and any potential target the criteria utilized by the Government to make this determination. It strains credulity to argue that the Due Process Clause requires the Government to disclose to Answer al-Aulaqi, an operational leader of the [al Qaeda in the Arabian Peninsula], whatever criteria it may be applying to respond to his activities.

Thus the government follows the Ninth Circuit's lead in invoking the privilege quite carefully, with protections (or saying that it's invoking the privilege carefully with protections), but in the end its sweep is every bit as broad as the more cavalier invocations by the prior administration and the Fourth Circuit in El-Masri.

The full D.C. Circuit ruled last week in a divided opinion (5-4) that the political question doctrine prevented the courts from hearing the plaintiffs' case against the government for President Clinton's bombing of their factory for alleged ties to al Qaeda.

The case, El-Shifa Pharmaceutical Industries Co. v. U.S., arose out of President Clinton's Tomahawk missile strikes on a drug manufacturing plant believed to be associated with al Qaeda. President Clinton ordered the strikes in response to al Qaeda's bombing of U.S. embassies in Kenya and Tanzania in August 1998.

The plaintiffs brought a defamation claim and a claim under international law against the U.S. government, but the D.C. Circuit upheld the lower court's dismissal based on the political question doctrine. The political question doctrine prevents the courts from hearing certain cases that are "constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch." Op. at 7 (citing Japan Whaling Ass'n v. Am. Cetacean Society. The seminal Supreme Court case on the political question doctrine, Baker v. Carr, explained that a political question involved the following:

a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

The majority wrote that the circuit followed a distinction between determining whether certain policy decisions were "wise" and determining whether certain policy decisions presented a legal issue. The former is a political question; the latter is not.

According to the majority, the issues here involved determining whether policy decisions were "wise." As to the international law claim--which would require the government to compensate the plaintiffs for property destruction that was "mistaken and not justified"--the court wrote that "[w]hether an attack on a foreign target is justified--that is whether it is warranted or well-grounded--is a quintessential 'policy choice[] and value determination[] constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch." Op. at 15. As to the defamation claim, the court wrote that "[i]t too would require the court to reconsider the merits of the decision to strike the El-Shifa plant by determining whether the government's justifications for the attack were false." Op. at 18.

The majority distinguished federal habeas review of detainees under Boumediene by writing that the Suspension Clause contemplates federal court review. The cases involving seizure of "enemy property" are similarly inapplicable, because none of those cases "required the courts to scrutinize a decision constitutionally committed wholly to the political branches." Op. at 24. (The dissent points out that President Clinton justified the attacks based only on his Article II Commander-in-Chief power--the constitutional commitment here.)

The dissent wrote that the majority inappropriately expanded the political question doctrine and with it executive authority (becuase the majority declined to review this executive decision because it was an executive decision). Like the majority, the dissent would have dismissed the case, but based upon the plaintiffs' failure to allege a cognizable cause of action, not the political question doctrine.

The majority's distinction between review of the wisdom of policy decisions and review of the legality of policy decisions is problemmatic, because it fails to articulate a limit on the political question doctrine, especially as the majority applied that distinction in this case. (The plaintiffs' claims are as much, or more, about the legality of the policy as the wisdom of the policy. In truth, the two overlap, collapsing the dichotomy that the majority relies upon.) Given the ruling here, it's hard to see what wouldn't be a decision on the wisdom of a policy, as opposed to the legality of a policy.

Detention of unlawful combatants is a good example. As the majority writes, the Suspension Clause contemplates a role for judicial review. But this is only because the Court has ruled on the Suspension Clause--because the Court has opened this door. This is the very issue in this case--whether the courts can review the plaintiffs' defamation and international law claims--and not a basis for distinguishing this case. Moreover, as we've seen in the lower courts' initial struggles in the wake of Boumediene, habeas for alleged unlawful combatants presents many of the same problems that the Court uses to justify and explain the political question doctrine in Baker v. Carr. Yet these cases are not political questions.

By the majority's reckoning, it seems they should be. And moreover, it seems that any issue related to foreign policy should be a political question--not only Boumediene, but also Hamdi, Hamdan, and the whole lot of cases arising out of the government's pursuit of terrorists. Even if the D.C. Circuit's distinction is coherent--which it isn't--the ruling has the surprising result that the courts could review executive detention but not executive bombings.

If the case goes up, the Supreme Court could have to wrestle with this tough, common-sensical question: Why can the courts review executive detention, but not the (potentially much more destructive) executive bombing?

The Second Circuit has issued its opinion in 09-0331-cv, Molinari v. Bloomberg, affirming the district court's rejection of challenges to Mayor Michael Bloomberg seeking a third term, despite previously approved term limits. As the Second Circuit noted,

At issue in this litigation is an amendment to the Charter of the City of New York, entitled Local Law 51, which was passed by the City Council and signed into law by Mayor Michael R. Bloomberg on November 3, 2008. It provides that Members of the City Council, the Mayor, Public Advocate, Comptroller and Borough Presidents are eligible to serve a maximum of three consecutive terms in office. It amends sections 1337 and 1338 of the City Charter, which previously provided for a maximum of two consecutive terms for these officials and which were enacted by a city-wide referendum in 1993.

The challenge raised several claims: a First Amendment claim that by amending the 1993 Voter Initiative through City Council legislation, the defendants discourage voters from participating in the referendum process in the future; a substantive due process claim that by passing legislation with the sole purpose of extending their own political careers and entrenching incumbents, the defendants violated the Fourteenth Amendment, as well as two state and local claims, based on laws mandating referendum as the mechanism to enact legislation regarding term limits, and the City Charter’s conflict of interest provisions.

The court’s analysis of the substantive due process claim merits some discussion. The Second Circuit panel writes:

Let us be clear. It is indisputable that, as a result of Local Law 51, several Members of the City Council who voted for it and were ineligible to run for reelection under the previous term limits law will now be able to seek reelection in the City’s November 2009 election. Some, perhaps even many, of these incumbents may be elected to a third term. Nevertheless, Local Law 51 neither interferes with a fundamental right nor singles out a suspect classification. Accordingly, it is subject to rationality review.

Opinion at 34. It isn't clear how the panel is using "suspect classification" in its due process analysis. However, applying rationality review, the panel states:

Here, the City’s purported reason for enacting Local Law 51 is to provide the voters with an opportunity to elect experienced public officials in a time of financial crisis. It is beyond dispute that extending New York City’s term limits to three consecutive terms is rationally related to that legitimate objective. The fact that defendants also may have been motivated by political reasons – the desire to remain in office and in positions of seniority – is inconsequential under our substantive due process analysis.

Id.

The due process analysis and the opinion as a whole demonstrate how difficult it can be to prevail on constitutional (or other) claims against legislative action that is objected to as "self-serving." While the Second Circuit opinion does not discuss "political questions" as a prudential (or Article III) restraint, such values are deeply embedded in the opinion.